Doucette v. Wee Watch Day Care Systems Inc. et al., (2008) 372 N.R. 95 (SCC)

• Judge: McLachlin, C.J.C., Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein, JJ.
• Court: Supreme Court (Canada)
• Case Date: November 15, 2007
• Jurisdiction: Canada (Federal)
• Citations: (2008), 372 N.R. 95 (SCC);2008 SCC 8;252 BCAC 1;[2008] ACS no 8;[2008] 4 WWR 1;75 BCLR (4th) 1;[2008] SCJ No 8 (QL);372 NR 95;JE 2008-501;290 DLR (4th) 193;[2008] 1 SCR 157

Doucette v. Wee Watch Day Care (2008), 372 N.R. 95 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

.........................

Temp. Cite: [2008] N.R. TBEd. MR.001

Suzette F. Juman also known as Suzette McKenzie (appellant) v. Jade Kathleen Ledenko Doucette, by her litigation guardian Greg Bertram, Chief Constable of the Vancouver Police Department, Attorney General of Canada and Attorney General of British Columbia (respondents)

(31590; 2008 SCC 8; 2008 CSC 8)

Indexed As: Doucette v. Wee Watch Day Care Systems Inc. et al.

Supreme Court of Canada

McLachlin, C.J.C., Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein, JJ.

March 6, 2008.

Summary:

A civil action and a criminal investigation were commenced regarding a child's injuries while in the care of a daycare worker. The worker provided discovery evidence in the civil action, which was subsequently settled. The discovery was never entered into evidence at a trial nor its contents disclosed in open court. The worker sought an order restricting disclosure of the examination for discovery transcript. The Attorney General of British Columbia, supported by the Vancouver police, sought to vary the implied undertaking of confidentiality regarding discovery evidence to allow disclosure to police.

The British Columbia Supreme Court, in a decision reported at [2005] B.C.T.C. 400, concluded that discovery evidence that disclosed criminal conduct was subject to the undertaking. The court declared that the Attorney General and the police were under an obligation not to cause any of the parties to violate their undertaking of confidentiality. The Attorney General appealed.

The British Columbia Court of Appeal, in a decision reported at 227 B.C.A.C. 140; 374 W.A.C. 140, allowed the appeal, setting aside the declaration. The implied undertaking did not preclude the parties from disclosing the worker's evidence to the police in good faith for the purpose of assisting the police in their criminal investigation. The Attorney General and the police could obtain the worker's discovery evidence by lawful investigative means, including subpoenas and search warrants. The worker appealed.

The Supreme Court of Canada allowed the appeal.

Civil Rights - Topic 1441

Security of the person - Right to privacy - General - [See third Practice - Topic 4157 ].

Civil Rights - Topic 4302

Protection against self-incrimination - General - Right to remain silent - [See ninth and tenth Practice - Topic 4157 ].

Civil Rights - Topic 4430

Protection against self-incrimination - Proceedings to which protection applies - Examination for discovery - [See ninth and tenth Practice - Topic 4157 ].

Civil Rights - Topic 4455

Protection against self-incrimination - Proceedings to which protection does not apply - Examination for discovery - [See fifth Practice - Topic 4157 ].

Civil Rights - Topic 4468

Protection against self-incrimination - Use of incriminating evidence in other proceedings - To discredit witness's testimony - [See fourth Practice - Topic 4157 ].

Courts - Topic 4806

Common law - General - Hearings - Open court - [See second Practice - Topic 4157 ].

Practice - Topic 4157

Discovery - General principles - Collateral use of discovery information (implied or deemed undertaking rule) - A civil action and a criminal investigation were commenced regarding a child's injuries while in the care of a daycare worker - The worker provided discovery evidence in the civil action, which was subsequently settled - The discovery was never entered into evidence at a trial nor its contents disclosed in open court - At issue was the potential disclosure of the discovery evidence to the police for their criminal investigation - The Supreme Court of Canada disagreed with the appeal court's conclusion that the implied undertaking of confidentiality regarding discovery evidence did not preclude the parties from disclosing the worker's evidence to the police in good faith for the purpose of assisting the police in their criminal investigation - The appeal court's ruling was too broad - A party was not in general free to disclose discovery evidence of what was considered to be criminal conduct to the police or any non-party without a court order - While there was an "immediate and serious danger" exception to the usual requirement for a court order, the exception was much narrower than suggested by the appeal court and did not cover the facts here - The balance of interests relevant to whether disclosure should be made was better evaluated by a court than by one of the litigants - While the implied undertaking did not prevent the Attorney General or the police from seeking a search warrant in the ordinary way to obtain transcripts, no such application had been made here - The matter had proceeded only to the point of determining whether or not the implied undertaking permitted "the bona fide disclosure of criminal conduct" without court order - Here, it did not - See paragraphs 1 to 6.

Practice - Topic 4157

Discovery - General principles - Collateral use of discovery information (implied or deemed undertaking rule) - A civil action and a criminal investigation were commenced regarding a child's injuries while in the care of a daycare worker - The worker provided discovery evidence in the civil action, which was subsequently settled - The discovery was never entered into evidence at a trial nor its contents disclosed in open court - At issue was the potential disclosure of the discovery evidence to the police for their criminal investigation - The Supreme Court of Canada rejected the argument that the implied undertaking of confidentiality regarding discovery evidence was contrary to the "open court" principle - Pretrial discovery did not take place in open court - The only point at which the "open court" principle was engaged was when, if at all, the case went to trial and the discovery documents and answers were introduced as evidence - See paragraphs 20 to 22.

Practice - Topic 4157

Discovery - General principles - Collateral use of discovery information (implied or deemed undertaking rule) - A civil action and a criminal investigation were commenced regarding a child's injuries while in the care of a daycare worker - The worker provided discovery evidence in the civil action, which was subsequently settled - The discovery was never entered into evidence at a trial nor its contents disclosed in open court - At issue was the potential disclosure of the discovery evidence to the police for their criminal investigation - The Supreme Court of Canada discussed the rationale for the implied undertaking of confidentiality regarding discovery evidence - Pretrial discovery was an invasion of a private right to be left alone with one's thought and papers, however embarrassing, defamatory or scandalous - The public interest in getting at the truth in a civil action outweighed the examinee's private interest - However, the examinee was nevertheless entitled to a measure of protection - The invasion of privacy was limited to that necessary for the civil action's purpose and for that purpose alone - This protection encouraged a more complete and candid discovery - See paragraphs 23 to 28.

Practice - Topic 4157

Discovery - General principles - Collateral use of discovery information (implied or deemed undertaking rule) - A civil action and a criminal investigation were commenced regarding a child's injuries while in the care of a daycare worker - The worker provided discovery evidence in the civil action, which was subsequently settled - The discovery was never entered into evidence at a trial nor its contents disclosed in open court - At issue was the potential disclosure of the discovery evidence to the police for their criminal investigation - The Supreme Court of Canada indicated that an applicant seeking to modify or vary the implied undertaking of confidentiality regarding discovery evidence had to demonstrate the existence of a public interest of greater weight than the values of privacy and efficient conduct of civil litigation that the undertaking was designed to protect - Only exceptional circumstances would justify setting aside the implied undertaking - Other than statutory exceptions (e.g., s. 14 of the Child, Family and Community Service Act), such circumstances might include a situation where there were immediate and serious public safety concerns or where it was apparent that a deponent had given contradictory testimony about the same matters in other proceedings - An undertaking implied by the court to make civil litigation more effective was not to be used to permit a witness to play games with the administration of justice - See paragraphs 32 to 38.

Practice - Topic 4157

Discovery - General principles - Collateral use of discovery information (implied or deemed undertaking rule) - A civil action and a criminal investigation were commenced regarding a child's injuries while in the care of a daycare worker - The worker provided discovery evidence in the civil action, which was subsequently settled - The discovery was never entered into evidence at a trial nor its contents disclosed in open court - At issue was the potential disclosure of the discovery evidence to the police for their criminal investigation - The Supreme Court of Canada indicated that an applicant seeking to modify or vary the implied undertaking of confidentiality regarding discovery evidence had to demonstrate the existence of a public interest of greater weight than the values of privacy and efficient conduct of civil litigation that the undertaking was designed to protect - Only exceptional circumstances would justify setting aside the implied undertaking of confidentiality regarding discovery evidence - The court rejected the appeal court's conclusion that the undertaking was not to form a shield from the detection and prosecution of crimes in which the public had an overriding interest - The rules of discovery were not intended to constitute litigants as private attorneys general - Allowing police to use the civil discovery process to obtain indirectly what they could not obtain directly would undermine the freedom of a suspect to refuse to cooperate with police - Adoption of the implied undertaking to facilitate full disclosure on discovery "even by crooks" was of the very essence of its purpose - See paragraphs 42 to 48.

Practice - Topic 4157

Discovery - General principles - Collateral use of discovery information (implied or deemed undertaking rule) - A civil action and a criminal investigation were commenced regarding a child's injuries while in the care of a daycare worker - The worker provided discovery evidence in the civil action, which was subsequently settled - The discovery was never entered into evidence at a trial nor its contents disclosed in open court - At issue was the potential disclosure of the discovery evidence to the police for their criminal investigation - The Supreme Court of Canada indicated that an applicant seeking to modify or vary the implied undertaking of confidentiality regarding discovery evidence had to demonstrate the existence of a public interest of greater weight than the values of privacy and efficient conduct of civil litigation that the undertaking was designed to protect - Only exceptional circumstances would justify setting aside the implied undertaking of confidentiality regarding discovery evidence - The court rejected the appeal court's conclusion that the undertaking was not to form a shield from the detection and prosecution of crimes in which the public had an overriding interest - The appeal court's qualification of its "crimes" exception to the implied undertaking by the requirement that the communication be made in good faith presented practical difficulties and was inconsistent with the court's rationale for granting relief against the undertaking - If, as the hypothesis required, the public's interest in bringing perpetrators to justice trumped the examinee's private interest, the good faith of the communication should be no more at issue than in the case of any other informant - Informants were valued for what they could tell, not for their worthy motives - See paragraphs 49 and 50.

Practice - Topic 4157

Discovery - General principles - Collateral use of discovery information (implied or deemed undertaking rule) - A civil action and a criminal investigation were commenced regarding a child's injuries while in the care of a daycare worker - The worker provided discovery evidence in the civil action, which was subsequently settled - The discovery was never entered into evidence at a trial nor its contents disclosed in open court - At issue was the potential disclosure of the discovery evidence to the police for their criminal investigation - The Supreme Court of Canada discussed the continuing nature of the implied undertaking of confidentiality regarding discovery evidence - The fact that the civil action's settlement had rendered the discovery moot did not mean that the worker's privacy interest was also moot - The undertaking continued to bind - When an adverse party incorporated the answers or documents obtained on discovery as part of the court record at trial, the undertaking was spent, but not otherwise, except by consent or court order - See paragraph 51.

Practice - Topic 4157

Discovery - General principles - Collateral use of discovery information (implied or deemed undertaking rule) - A civil action and a criminal investigation were commenced regarding a child's injuries while in the care of a daycare worker - The worker provided discovery evidence in the civil action, which was subsequently settled - The discovery was never entered into evidence at a trial nor its contents disclosed in open court - At issue was the potential disclosure of the discovery evidence to the police for their criminal investigation - The Supreme Court of Canada discussed who was entitled to notice of an application to modify or vary the implied undertaking of confidentiality regarding discovery evidence - The issue of notice would be for the chambers judge to determine on the facts - However, in general, the police were not entitled to notice of such an application - Nor were the media - The only parties with a direct interest, other than the applicant, were the deponent and other parties to the litigation - See paragraph 52.

Practice - Topic 4157

Discovery - General principles - Collateral use of discovery information (implied or deemed undertaking rule) - A civil action and a criminal investigation were commenced regarding a child's injuries while in the care of a daycare worker - The worker provided discovery evidence in the civil action, which was subsequently settled - The discovery was never entered into evidence at a trial nor its contents disclosed in open court - At issue was the potential disclosure of the discovery evidence to the police for their criminal investigation - The Supreme Court of Canada discussed standing to apply for an order to modify or vary the implied undertaking of confidentiality regarding discovery evidence by strangers to the undertaking - Here, the Attorney General of British Columbia, supported by the police, demonstrated a sufficient interest in the transcripts to be given standing to apply - Their objective was to obtain evidence that would help to explain the events and possibly to incriminate the worker - It would be quite wrong for the police to be able to take advantage of statutorily-compelled testimony in civil litigation to undermine the worker's right to silence and the protection against self-incrimination afforded by the criminal law - Accordingly, the application here was properly dismissed by the chambers judge - However, a non-party engaged in other litigation with an examinee, who learned of potentially contradicting testimony, would have standing to seek to obtain a modification of the undertaking and the application might well succeed - The competing interests would have to be weighed, keeping in mind that an undertaking too readily set aside sent the message that such undertakings were unreliable - See paragraph 53.

Practice - Topic 4157

Discovery - General principles - Collateral use of discovery information (implied or deemed undertaking rule) - A civil action and a criminal investigation were commenced regarding a child's injuries while in the care of a daycare worker - The worker provided discovery evidence in the civil action, which was subsequently settled - The discovery was never entered into evidence at a trial nor its contents disclosed in open court - The Attorney General of British Columbia, supported by the Vancouver police, applied for an order to permit any person in lawful possession of the discovery transcript to provide a copy to the police or to the Attorney General to assist in the criminal investigation and prosecution of any criminal offence that might have occurred - The chambers judge dismissed the application - The appeal court allowed the Attorney General's appeal, indicating that the implied undertaking of confidentiality regarding discovery evidence did not preclude the parties from disclosing the worker's evidence to the police in good faith for the purpose of assisting the police in their criminal investigation - The Supreme Court of Canada allowed the worker's appeal - The court agreed with the chambers judge that the Attorney General's application should be rejected - The application's purpose was to sidestep the worker's silence in the face of police investigation of her conduct - The authorities should not be able to obtain indirectly a transcript that they were unable to obtain directly through a search warrant in the ordinary way because they lacked the grounds to justify it - See paragraph 58.

Practice - Topic 5001

Conduct of trial - General principles - Open court - General - [See second Practice - Topic 4157 ].

Cases Noticed:

Hunt v. T & N plc - see Hunt v. Atlas Turner Inc. et al.

Hunt v. Atlas Turner Inc. et al. (1995), 58 B.C.A.C. 94; 96 W.A.C. 94; 4 B.C.L.R.(3d) 110 (C.A.), refd to. [para. 18].

Ross v. Henriques et al., [2007] B.C.T.C. Uned. 766; 2007 BCSC 1381, refd to. [para. 20].

Lac d'Amiante du Québec ltée v. 2858-0702 Québec Inc. et al., [2001] 2 S.C.R. 743; 274 N.R. 201; 2001 SCC 51, refd to. [para. 20].

Stickney v. Trusz (1973), 2 O.R.(2d) 469 (H.C.), affd. (1974), 3 O.R.(2d) 538 (Div. Ct.), affd. (1974), 3 O.R.(2d) 538 (C.A.), leave to appeal refused [1974] S.C.R. xii, refd to. [para. 20].

Tricontinental Investments Co. v. Guarantee Co. of North America (1982), 39 O.R.(2d) 614 (H.C.), refd to. [para. 20].

Phillips et al. v. Richard, J., [1995] 2 S.C.R. 97; 180 N.R. 1; 141 N.S.R.(2d) 1; 403 A.P.R. 1, refd to. [para. 20].

MacIntyre v. Nova Scotia (Attorney General), Grainger and Canada (Attorney General) et al., [1982] 1 S.C.R. 175; 40 N.R. 181; 49 N.S.R.(2d) 609; 96 A.P.R. 609, dist. [para. 21].

Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326; 102 N.R. 321; 103 A.R. 321, dist. [para. 21].

Slavutych v. Baker - see Slavutych v. University of Alberta.

Slavutych v. University of Alberta, [1976] 1 S.C.R. 254; 3 N.R. 587, refd to. [para. 25].

Kyuquot Logging Ltd. v. British Columbia Forest Products Ltd. (1986), 5 B.C.L.R.(2d) 1 (C.A.), refd to. [para. 26].

Home Office v. Harman, [1983] 1 A.C. 280 (H.L.), refd to. [para. 27].

Shaw Estate v. Oldroyd - see Walker v. Oldroyd.

Walker v. Oldroyd, [2007] B.C.T.C. Uned. 470; 2007 BCSC 866, refd to. [para. 27].

Rayman Investments and Management Inc. v. Canada Mortgage and Housing Corp., [2007] B.C.T.C. Uned. 208; 2007 BCSC 384, refd to. [para. 27].

Wilson v. McCoy, [2006] B.C.T.C. Uned. 507; 59 B.C.L.R.(4th) 1; 2006 BCSC 1011, refd to. [para. 27].

Laxton Holdings Ltd. v. Madill - see Laxton Holdings Ltd. v. Lloyd's of London, Non-Marine Underwriters et al.

Laxton Holdings Ltd. v. Lloyd's of London, Non-Marine Underwriters et al., [1987] 3 W.W.R. 570 (Sask. C.A.), refd to. [para. 27].

Blake v. Hudson's Bay Co., [1988] 1 W.W.R. 176 (Man. Q.B.), refd to. [para. 27].

755568 Ontario Ltd. v. Linchris Homes Ltd. (1990), 1 O.R.(3d) 649 (Gen. Div.), refd to. [para. 27].

Rocca Enterprises Ltd. et al. v. University Press of New Brunswick Ltd. and Crowther (1989), 103 N.B.R.(2d) 224; 259 A.P.R. 224 (T.D.), refd to. [para. 27].

Eli Lilly and Co. et al. v. Interpharm Inc. et al. (1993), 161 N.R. 137 (F.C.A.), refd to. [para. 27].

Cipollone v. Liggett Group Inc. (1986), 785 F.2d 1108 (3rd Cir.), refd to. [para. 28].

Goodman v. Rossi (1995), 83 O.A.C. 38; 125 D.L.R.(4th) 613 (C.A.), refd to. [para. 29].

Crest Homes Ltd. v. Marks et al., [1987] 2 All E.R. 1074; 93 N.R. 256 (H.L.), refd to. [para. 33].

Jones v. Smith, [1999] 1 S.C.R. 455; 236 N.R. 201; 120 B.C.A.C. 161; 196 W.A.C. 161, refd to. [para. 33].

Lac Minerals Ltd. v. New Cinch Uranium Ltd. (1985), 50 O.R.(2d) 260 (H.C.), refd to. [para. 35].

Miller (Ed) Sales & Rentals Ltd. v. Caterpillar Tractor Co. et al. (1988), 90 A.R. 323 (C.A.), refd to. [para. 35].

Harris v. Sweet et al., [2005] B.C.T.C. Uned. 444; 2005 BCSC 998 (Master), refd to. [para. 35].

Scuzzy Creek Hydro & Power Inc. et al. v. Tercon Contractors Ltd. et al., [1998] B.C.T.C. Uned. F81; 27 C.P.C.(4th) 252 (S.C.), refd to. [para. 35].

Lubrizol Corp. et al. v. Imperial Oil Ltd. et al. (1990), 39 F.T.R. 43; 33 C.P.R.(3d) 49 (T.D. Protho.), refd to. [para. 36].

Livent Inc. v. Drabinsky et al., [2001] O.T.C. Uned. 235; 53 O.R.(3d) 126 (Sup. Ct.), agreed with [para. 36].

R. v. Henry (D.B.) et al., [2005] 3 S.C.R. 609; 342 N.R. 259; 376 A.R. 1; 360 W.A.C. 1; 219 B.C.A.C. 1; 361 W.A.C. 1; 2005 SCC 76, refd to. [para. 41].

R. v. Nedelcu (M.), [2007] O.T.C. Uned. 463; 41 C.P.C.(6th) 357 (Sup. Ct.), refd to. [para. 41].

Rank Film Distributors Ltd. v. Video Information Centre, [1982] A.C. 380 (H.L.), dist. [para. 46].

Solosky v. Canada, [1980] 1 S.C.R. 821; 30 N.R. 380, refd to. [para. 47].

R. v. Campbell (J.) and Shirose (S.), [1999] 1 S.C.R. 565; 237 N.R. 86; 119 O.A.C. 201, refd to. [para. 47].

Gibraltar (Attorney General) v. May, [1999] 1 W.L.R. 998 (C.A.), refd to. [para. 47].

Bank of Crete S.A. v. Koskotas (No. 2), [1992] 1 W.L.R. 919 (Ch. Div.), refd to. [para. 47].

Sybron Corp. v. Barclays Bank plc, [1985] 1 Ch. 299, refd to. [para. 47].

Bailey v. Australian Broadcasting Corp., [1995] 1 Qd. R. 476 (S.C.), refd to. [para. 47].

Commonwealth v. Temwood Holdings Pty., [2001] WASC 282; 25 W.A.R. 31, refd to. [para. 47].

Perrin v. Beninger et al., [2004] O.T.C. 485 (Sup. Ct. Master), refd to. [para. 48].

Tyler v. Minister of National Revenue, [1991] 2 F.C. 68; 120 N.R. 140 (F.C.A.), refd to. [para. 48].

R. v. R.J.S., [1995] 1 S.C.R. 451; 177 N.R. 81; 78 O.A.C. 161, refd to. [para. 54].

R. v. Serendip Physiotherapy Clinic et al. (2004), 192 O.A.C. 71; 189 C.C.C.(3d) 417 (C.A.), refd to. [para. 56].

Authors and Works Noticed:

Laskin, John B., The Implied Undertaking (October 19, 1991), pp. 36 to 40 [para. 28].

Papile, Cristiano, The Implied Undertaking Revisited (2006), 32 Adv. Q. 190, pp. 194, 195, 196 [para. 27].

Stevenson, William A., and Côté, Jean E., Civil Procedure Encyclopedia (2003), vol. 2, p. 42-36 ff. [para. 27].

Counsel:

Brian T. Ross and Karen L. Weslowski, for the appellant;

No one appeared for the respondent, Jade Kathleen Ledenko Doucette, by her litigation guardian, Greg Bertram;

Karen F.W. Liang, for the respondent, the Chief Constable of the Vancouver Police Department;

Michael H. Morris, for the respondent, the Attorney General of Canada;

J. Edward Gouge, Q.C., and Natalie Hepburn Barnes, for the respondent, the Attorney General of British Columbia.

Solicitors of Record:

Miller  Thomson, Vancouver, British  Columbia, for the appellant;

City of Vancouver, Vancouver, British Columbia, for the respondent, the Chief Constable of the Vancouver Police Department;

Attorney General of Canada, Toronto, Ontario, for the respondent, the Attorney General of Canada;

Attorney General of British Columbia, Victoria, British Columbia, for the respondent, the Attorney General of British Columbia.

This appeal was heard on November 15, 2007, by McLachlin, C.J.C., Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein, JJ., of the Supreme Court of Canada. On March 6, 2008, Binnie, J., delivered the following judgment of the court in both official languages.